ROBERT V. MARSHALL, PETITIONER V. UNITED STATES OF AMERICA
No. 90-5968
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. B) is reported at
910 F.2d 1241.
JURISDICTION
The judgment of the court of appeals was entered on August 23,
1990. The petition for a writ of certiorari was filed on October 15,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether petitioner was properly sentenced as a career offender.
2. Whether the district court lacked jurisdiction to accept
petitioner's guilty plea because his indictment had not been signed by
the foreman of the Grand Jury.
STATEMENT
Petitioner pleaded guilty in the United States District Court for
the Western District of Texas to one count of distributing cocaine
base, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 210
months' imprisonment, to be followed by five years' supervised
release. /1/
1. The facts are not in dispute. In July 1989, a confidential
informant bought almost 20 grams of cocaine base from petitioner and
his co-defendants, Ramona Davis and Evelyn King, in Midland, Texas.
Pet. App. B5985. Two detectives witnessed the sale that was the basis
of the plea. Plea Tr. 19-20.
2. At the plea hearing, the district court informed petitioner that
he would be sentenced under the Sentencing Guidelines and that his
sentence could not be determined until a presentence report (PSR) had
been prepared. Plea Tr. 7, 11, 15, 22-23. Petitioner acknowledged
that he understood, that he and his attorney had discussed how the
Guidelines might apply to his case, and that he knew that the maximum
sentence he faced was twenty years' imprisonment and a fine of $1
million. Plea Tr. 12, 15. He also acknowledged that no promises had
been made to him other than that the government would move to dismiss
the five remaining counts against him. Plea Tr. 14-15. The court
asked him if he had changed his mind about pleading guilty, and he
said that he had not. Plea Tr. 10-11. After finding that petitioner
fully understood his rights and his maximum possible sentence, the
court accepted his guilty plea. Plea Tr. 21. Petitioner acknowledged
that he had been in trouble with the law before and opined that the
court would have no difficulty obtaining all the information on his
background that it would need in order to determine sentence. Plea
Tr. 23.
3a. The probation office determined that petitioner was a career
offender under Guideline Section 4B1.1, which requires, inter alia,
that a defendant have at least two prior felony convictions of either
a crime of violence or a controlled substance offense. The probation
office counted four such prior felony convictions: (1) a 1972 federal
conviction for robbery of government funds (in violation of 18 U.S.C.
2114), (2) a 1972 state conviction for robbery, (3) 1972 state
convictions for using a firearm during the commission of a felony and
for three counts of robbery, and (4) a 1978 state coviction for
possession of a controlled substance.
When petitioner committed the instant offense, Application Note 4
to Guideline Section 4B1.2 stated that Guideline Section 4A1.2(e) was
applicable to the counting of convictions under Guideline Section
4B1.1. /2/ At that time, Guideline Section 4A1.2(e)(1) provided:
Any prior sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the defendant's
commencement of the instant offense is counted. Also count any
prior sentence of imprisonment exceeding one year and one month
that resulted in the defendant's incarceration during any part
of such fifteen-year period. /3/
The probation office concluded that all of petitioner's previous
convictions fell within the applicable time period for computing his
criminal history because he had served all or part of the sentences
for those convictions within the fifteen years prior to his
commencement of the instant offense in July 1989. /4/ It therefore
counted those convictions for career offender purposes. PSR 7-8,
10-11.
b. Petitioner filed objections (PSR 18) to the PSR's computation of
his criminal history, contending that only the state drug conviction
qualified as a predicate for career offender status because the other
crimes were all committed more than ten years before the instant
offense. The probation office declined to revise its computation on
this basis and reaffirmed its conclusion that all four prior felony
convictions were proper predicates under Guideline Section
4A1.2(e)(1). PSR 18-19.
4. At the sentencing hearing, petitioner did not renew this
objection to the PSR. Instead, he argued that he should not be
sentenced as a career offender because his 1972 crimes were, as he
characterized them, simply part of a "spree" for which he had already
been punished. Sent. Tr. 37-38. He also claimed that when he pleaded
guilty to the instant offense, he did not know that he would be
adjudicated a career offender, and that if he had known, "I might not
have pled guilty." Sent. Tr. 38. Defense counsel, however, said that
he had discussed the meaning of career offender status with
petitioner. Sent. Tr. 39. Petitioner did not seek to withdraw his
guilty plea.
The district court "accept(ed) as accurate" the PSR's information
on petitioner's criminal history and found him to be a career
offender. Sent. Tr. 45. With a criminal history category of VI and
an offense level of 30, the applicable sentencing range was 168 to 210
months' imprisonment. The court imposed the maximum Guidelines
sentence. Sent. Tr. 46.
5. The court of appeals affirmed. Pet. App. B. It rejected
petitioner's contention that 21 U.S.C. 851 entitled him to notice
before he pleaded guilty that he would be sentenced as a career
offender. The court explained that the notice requirement applies
when the government seeks to enhance the maximum penalty under the
recidivist provisions of Title 21, but that it does not apply to
sentences imposed pursuant to the Guidelines and within the applicable
sentencing range. Pet. App. B5987-B5988. /5/ The court also noted
that petitioner "was told and acknowledged at his sentencing that he
understood the Sentencing Guidelines applied to his sentence and the
district court could not give an estimate of his sentence.
Furthermore, (petitioner) told the district judge that he understood
that he faced up to 20 years in prison (and) a $1,000,000 fine." Pet.
App. B5988 n.1. /6/
The court next rejected petitioner's claim that his 1972
convictions should not have been counted for career offender purposes
because, in petitioner's view, there was "no proof" (Pet. C.A. Br. 18)
that he had served any part of his prison sentences on those
convictions during the fifteen years prior to the commencement of the
instant offense, as required by Guideline Section 4A1.2(e)(1).
Petitioner argued that the government should have been required to
show that he was not on parole for those offenses prior to July 22,
1974 (Pet. C.A. Br. 18-19). Noting that petitioner had failed to
raise this issue in the district court, the court of appeals
reaffirmed the general rule against considering issues for the first
time on appeal unless they "involve purely legal questions and the
failure to review them would result in a manifest injustice." Pet.
App. B5988. The court found that petitioner's issue did not satisfy
either of these criteria, because (1) "(t)he determination of release
dates involves factual, not legal, questions," and (2) petitioner "was
aware of the recitations in the presentence report concerning his
release dates and at no time called the court's attention to a
discrepancy or any difference of opinion on them." Pet. App. B5988.
The court observed that the district judge was in any event entitled
to rely upon uncorroborated hearsay that carries sufficient indicia of
reliability, and that that standard was met here because the PSR's
information about petitioner's release dates had been derived from
public records. Pet. App. B5988-B5989. Accordingly, the court ruled
that the 1972 convictions "fall squarely within the fifteen year
period of Section 4A1.2(e)." Pet. App. B5988.
Finally, the court rejected another claim that petitioner had
raised for the first time on appeal, i.e., that his indictment was
fatally defective because the foreman of the Grand Jury had not signed
it. In determinig the effect of Fed. R. Crim. P. 6(c), which states
that "(t)he foreperson * * * shall sign all indictments," the court
relied (at Pet. App. B5986) on the Notes to that provision by the
Advisory Committee on Rules, which make clear that the "(f)ailure of
the foreman to sign or endorse the indictment is an irregularity and
is not fatal, Frisbie v. United States, 157 U.S. 160, 163-165." The
court observed that petitioner had not only failed to raise this issue
below but had also failed to object to the government's
supplementation of the record on appeal with a Grand Jury concurrence
form, signed by the foreman, that showed that 18 jurors had in fact
concurred in the finding of the indictment. Pet. App. B5986; Gov't
C.A. Br. Addenda A, B, C. Accordingly, the court ruled that the lack
of the foreman's signature on the indictment did not deprive the
district court of jurisdiction to accept petitioner's guilty plea.
Pet. App. B5986.
ARGUMENT
1. Petitioner challenges his career offender status on two grounds,
neither of which warrants review.
a. First, petitioner contends (Pet. 9-12) that 21 U.S.C. 851
entitled him to notice before he pleaded guilty that he would be
sentenced as a career offender. This claim is incorrect. As the
court of appeals explained, Section 851 was inapplicable to petitioner
because he received an increased sentence under the Guidelines, within
the generally applicable statutory range. See United States v.
McDougherty, No. 89-50245 (9th Cir. Nov. 28, 1990), slip op.
14712-14713; United States v. Wallace, 895 F.2d 487, 489-490 (8th
Cir. 1990). /7/ Section 851 was enacted in 1970, /8/ and is thus not
part of the Guidelines, which do not even refer to Section 851.
Section 851 applies when the government seeks to invoke the increased
statutory penalties in 21 U.S.C. 841-858, based upon certain
qualifying prior convictions. Unlike Section 851 and its related
provisions, the career offender provision of the Guidelines (Section
4B1.1) does not increase the statutory penalties for the defendant's
crime. It simply implements the mandate of 28 U.S.C. 994(h) that the
Sentencing Commission assure that certain career offenders receive
sentences "at or near the maximum term authorized" for their crime
under the existing federal statute. See McDougherty, slip op. 14713.
/9/ Nothing in the Guidelines requires that defendants be given
pre-plea notice of career offender status. Cf. United States v.
Selfa, 918 F.2d 749, 752 (9th Cir.) (rejecting claim that Fed. R.
Crim. P. 11 requires notification of career offender status at time of
plea), cert. denied, 111 S. Ct. 521 (1990); Advisory Committee Notes
to Fed. R. Crim. P. 11 (recognizing that it is "impracticable, if not
impossible, to know which guidelines will be relevant prior to the
formulation of a presentence report and resolution of disputed
facts"). /10/
Contrary to petitioner's suggestion (Pet. 9), there was nothing
unfair about the lack of pre-plea notice of his career offender
status. During the plea proceedings, petitioner acknowledged that (1)
he faced a maximum sentence of twenty years' imprisonment and a $1
million fine, (2) he knew that his criminal history was relevant to
his sentence and that his sentence could not be estimated until a PSR
had ben prepared, (3) he and his attorney had discussed the
applicabilty of the Guidelines to his case, and (4) he nevertheless
wished to persist in his plea. Plea Tr. 7, 10-12, 15, 21-23. The
district court specifically found that petitioner fully understood his
rights. Plea Tr. 21. Moreover, petitioner -- who received less than
the maximum sentence -- does not deny that he was given ample
opportunity to contest the career offender determination both in
written objections to the PSR and at the sentencing hearing. His
comment at sentencing that he "might" not have pleaded guilty had he
known that he would be sentenced as a career offender (Sent. Tr. 38)
is belied by his attorney's indication that he had discussed that very
possibility with petitioner, as well as by the fact that petitioner
never moved to withdraw his guilty plea. Cf. United States v.
Babineau, 795 F.2d 518, 521 (5th Cir. 1986) (defendant's failure to
attempt to withdraw guilty plea at time of sentencing indicates that
asserted violation of Rule 11 did not affect decision to plead
guilty); Lilly v. United States, 792 F.2d 1541, 1544-1545 (11th Cir.
1986) (same). /11/
In sum, petitioner was not entitled to pre-plea notice that he
would be sentenced as a career offender. /12/
b. Next, petitioner renews (Pet. 12-14) his claim that his 1972
convictions should not have been counted for career offender purposes
because there was "no proof" (Pet. 13) that he was serving sentences
of imprisonment within fifteen years of the commencement of the
instant offense, as required by Guideline Section 4A1.2(e)(1). Having
filed objections to the PSR on other grounds and discussed his
sentence at length with the judge (Sent. Tr. 33, 34-45, 47),
petitioner obviously had ample opportunity to raise this claim in the
district court. Nevertheless, he failed to do so; he has therefore
waived the claim. See United States v. Visman, No. 89-10630 (9th Cir.
Nov. 28, 1990), slip op. 14700-14702; United States v. Soliman, 889
F.2d 441, 445 (2d Cir. 1989); United States v. Atehortua, 875 F.2d
149, 151 (7th Cir. 1989).
In any event, as the court of appeals recognized, the district
court was entitled to rely upon the PSR's unchalleged information,
drawn from public records, concerning petitioner's prison release
dates. See Commentary to Guideline Section 6A1.3 ("In determining the
relevant facts, sentencing judges are not restricted to information
that would be admissible at trial. 18 U.S.C. Section 3661. Any
information may be considered, so long as it has 'sufficient indicia
of reliability to support its probable accuracy.' * * * Reliable
hearsay evidence may be considered"). See also United States v.
Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989) (proper for district
court to rely on probation officer's uncorroborated hearsay testimony
at sentencing hearing). Even now, petitioner does not deny the
accuracy of the PSR's information. There are thus no grounds for
disturbing the district court's determination that the release dates
were accurate and that the underlying prior felony convictions were
countable for career offender purposes.
2. Petitioner next renews (Pet. 14-15) his contention -- raised for
the first time in the court of appeals -- that the absence of the
foreman's signature from the indictment rendered it fatally defective
and deprived the district court of jurisdiction to accept his guilty
plea. It is true, as petitioner points out (Pet. 15), that a guilty
plea does not waive jurisdictional defects. United States v. Diaz,
733 F.2d 371 (5th Cir. 1984). But the omission here was not such a
defect, as the Notes to Fed. R. Crim. P. 6(c) by the Advisory
Committee on Rules (quoted at Pet. App. B5986) -- which petitioner
does not even mention -- make clear. See also Frisbie v. United
States, 157 U.S. at 164 (lack of foreman's signture "does not go to
the substance of the charge, but only to the form in which it is
presented"); Hobby v. United States, 468 U.S. 339, 345 (1984) ("the
foreman's duty to sign the indictment is a formality, for the absence
of the foreman's signature is a mere technical irregularity that is
not necessarily fatal to the indictment"). Moreover, as the court of
appeals noted (Pet. App. B5986), petitioner failed to object to the
omission either in the district court or when the government moved to
supplement the record on appeal with a Grand Jury concurrence from
(Gov't C.A. Br. Addendum C) signed by the foreman. Cf. Frisbie, 157
U.S. at 164 (objection to unsigned indictment is waived if "not made
in the first instance and before trial"). In any event, the
concurrence form incontestably established that the indictment had
been found by 18 Grand Jurors. See Fed. R. Crim. P. 6(c) (requiring
foreman or his designee to keep a "record of the number of jurors
concurring in the finding of every indictment") and 6(b)(2) (barring
dismissal of an indictment on the ground that one or more Grand Jurors
were not legally qualified if it appears from the record kept pursuant
to Rule 6(c) "that 12 or more jurors, after deducting the number not
legally qualified, concurred in finding the indictment").
In short, the court of appeals was correct in holding that the
absence of the foreman's signature from the indictment did not create
a jurisdictional bar to the district court's acceptance of
petitioner's guilty plea. /13/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
VICKI S. MARANI
Attorney
JANUARY 1991
/1/ After petitioner pleaded guilty, five other counts of the
indictment were dismissed. Sent. Tr. 47.
/2/ Application Note 4 to Section 4B1.2 was amended, effective
November 1, 1989, to read: "The provisions of Section 4A1.2
(Definitions and Instructions for Computing Criminal History) are
applicable to the counting of convictions under Section 4B1.1." The
Guidelines (App. C.123, amendment 268) state that "the amendment
clarifies that all pertinent definitions and instructions in Section
4B1.2 apply to this section."
/3/ The second sentence of this provision was amended, effective
November 1, 1989, to read: "Also count any prior sentence of
imprisonment exceeding one year and one month, whenever imposed, that
resulted in the defendant being incarcerated during any part of such
fifteen-year period." The Guidelines (App. C.121, amendment 262) state
that "(t)he purpose of this amendment is to clarify that 'resulted in
the defendant's incarceration' applies to any part of the defendant's
imprisonment and not only to the commencement of the defendant's
imprisonment."
/4/ For his federal conviction, petitioner was sentenced on
December 4, 1972, to ten years' imprisonment; he was paroled on
August 4, 1978. For his state robbery conviction, he was sentenced on
December 14, 1972, to five years to life, to run concurrently with his
federal sentence; although he had a tentative parole date of November
21, 1977, he remained in custody on his federal sentence. For his
other state robbery and firearm convictions, he was sentenced on
February 22, 1973, to five years to life on each count; he was
transferred to the custody of the U.S. Marshal's Service on November
21, 1977. For his state controlled substance conviction, he was
sentenced on March 18, 1980, to two years' imprisonment; he was
paroled on January 13, 1981. PSR 7-8, 10-11.
/5/ Part D of Title 21 specifically enhances penalties if the
offender has certain types of prior convictions. See, e.g., 21 U.S.C.
841(b)(1)(C); 21 U.S.C. 842(c). Section 851 provides, in pertinent
part, that before a person convicted of an offense under Part D of
Title 21 of the U.S. Code receives "increased punishment by reason of
one or more prior convictions," the U.S. Attorney must have filed --
before trial or plea -- an information stating the previous
convictions to be relied upon. 21 U.S.C. 851(a). The statute gives
the convicted defendant an opportunity to "affirm() or den(y) that he
has been previously convicted as alleged in the information" (Section
851(b)) and provides for a hearing on disputed matters (Section
851(c)).
/6/ Although the court of appeals stated that this discussion
occurred at the sentencing hearing, it actually occurred at the plea
hearing, before petitioner pleaded guilty. Plea Tr. 7, 11, 12, 15,
22-23.
/7/ The court of appeals (Pet. App. B5987) cites United States v.
Williams, 899 F.2d 1526 (6th Cir. 1990), as taking the contrary view.
However, Williams was not sentenced as a career offender under
Guideline Section 4B1.1; instead, the government sought to have him
sentenced as a prior drug offender under the recidivist provisions of
21 U.S.C. 841. The Sixth Circuit thus held that the government should
have complied with the notice provisions of Section 851.
/8/ Pub. L. 91-513, Title II, Section 411, Oct. 27, 1970, 84 Stat.
1269.
/9/ Since the cases cited by petitioner (Pet. 10-11) discuss the
applicability of sentencing enhancement provisions in pre-Guidelines
cases, they are beside the point.
/10/ Indeed, a defendant is not entitled to be informed of his
Guidelines sentencing range at the time of plea. See United States v.
Fernandez, 877 F.2d 1138, 1142-1143 (2d Cir. 1989); United States v.
Henry, 893 F.2d 46, 48-49 (3d Cir. 1990); United States v. Salva, 902
F.2d 483, 487 (7th Cir. 1990); United States v. Thomas, 894 F.2d 996,
997 (8th Cir.), cert. denied, 110 S. Ct. 1935 (1990); United States
v. Turner, 881 F.2d 684, 687 (9th Cir.), cert. denied, 110 S. Ct. 199
(1989); United States v. Rutter, 897 F.2d 1558, 1564 & n.7 (10th
Cir.), cert. denied, 111 S. Ct. 88 (1990).
/11/ In Burns v. United States, No. 89-7260 (argued Dec. 3, 1990),
the question presented is whether a district court must notify a
defendant in advance of its intent to depart upward from the
sentencing range prescribed by the Guidelines, and of its grounds for
the departure. Since the instant case involves a sentence within the
Guidelines range, it does not implicate the question at issue in
Burns.
/12/ We note that petitioner benefited from the fact that he was
sentenced as a career offender under the Guidelines rather than as a
prior drug offender under the recidivist provisions of 21 U.S.C. 841.
His 1980 state felony conviction for possession of a controlled
substance actually made him subject to a maximum sentence of thirty
years, not twenty years. See 21 U.S.C. 841(b)(1)(C). If the
government had sought to enhance his sentence under 21 U.S.C.
841(b)(1)(C), he would have been entitled to notice under 21 U.S.C.
851. But since the government did not seek to do so, Section 851 was
inapplicable, as we have explained.
/13/ Rose v. Mitchell, 443 U.S. 545 (1979), cited by petitioner
(Pet. 14), is not to the contrary. The issue in Rose was whether the
respondents were entitled to federal habeas corpus relief on their
claim of racial discrimination in the selection of foremen for
Tennessee grand juries. This Court assumed without deciding that such
discrimination would require that a subsequent conviction be set aside
(443 U.S. at 551 n.4), but ruled against the respondents on the merits
of the discrimination claim (id. at 574). Thus, Rose did not involve
the jurisdictional effect of an unsigned federal indictment.
Moreover, in interpreting Rose in Hobby, 468 U.S. at 348, this Court
recognized that "(t)he investigative and administrative powers and
responsibilities conferred upon the grand jury foreman in Tennessee *
* * stand in sharp contrast to the ministerial powers of the federal
counterpart, who performs strictly clerical tasks and whose signature
on an indictment is a mere formality" (emphasis added).
Petitioner's reliance upon Hammond v. Brown, 323 F. Supp. 326, 336
(N.D. Ohio), aff'd, 450 F.2d 480 (6th Cir. 1971), is also misplaced.
That case notes that an unsigned indictment is void under Ohio, not
federal, law.